Thursday, August 18

The unconstitutionality of the co-governance drives the lawsuits for Covid restrictions pending in the Supreme Court

Pedro Sánchez, during the recent Spanish-Portuguese Summit.

The sentence whose ruling was made public this Wednesday on Constitutional Court (TC) and what does he declare unconstitutional Several provisions of the second state of alarm imposed by the Government last October in the face of the Covid-19 pandemic, including co-governance with the autonomous communities, is already being used as “new relevant fact” in some lawsuits still pending resolution in the Supreme court.

These lawsuits, presented before the Contentious Chamber of the High Court, seek that The restrictions imposed under the umbrella of the provisions of the Government of Pedro Sánchez are also declared void full right. These are rules that are no longer in force, such as entry and exit limitations to certain territories that were in force for months.

Lawyer Curro Nicolau, which has filed several lawsuits in the Supreme Court since the beginning of the restrictions in March 2020, has not even waited for the full text of the judgment of the guarantee body.

One day after the decision of the TC was announced, he presented a written document before the Supreme Court using the declaration of unconstitutionality as a new relevant fact in the lawsuit that is pending resolution against the decree of Ximo Puig that forced the perimeter closure of the Valencian Community.

“Regardless of the legal consequences that could be derived from all this,” says the letter to which EL PERIÓDICO DE ESPAÑA has had access, Nicolau considers that from the decision of the Constitutional Court it is inferred that the president of the Generalitat Valenciana “lacked an enabling title” to dictate the rule that restricted the entry and exit of people from the Valencian Community, so this must be declared null and void.

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And this, he adds, because Puig “assumed his status as a delegated competent authority “and, without resorting to the legal mechanism provided for in the Law of Contentious-Administrative Jurisdiction,” it decided to impose without further ado the restriction of the fundamental right of freedom of movement of article 19 of the Spanish Constitution “by decree.

Constitutional Decision

Regarding the appointment of the competent delegated authorities, the Constitutional Court ruling considers that, among other reasons, the provisions of the organic law are contravened to which article 116.1 of the Constitution reserves the regulation of crisis states and the corresponding powers and limitations.

For this reason, the lawyer incorporates what is indicated in his ruling by the Constitutional Court to his pending process in the Supreme Court, since he declares the delegation of powers under the Puig decree to be null and unconstitutional.

He considers that he agrees with his initial approach. In other words, the regional president did not have the competence to dictate the confinement of the Valencian population or to establish a ban on entering said territory, which affected him personally.

Specifically, the movement of people was limited at night in the Valencian Community and, taking into account “the global assessment of health indicators, epidemiological, social, economic and mobility, and based on the reports of the Conselleria de Sanidad Universal y Salud Pública, entry and exit into the territory was prohibited except in very limited cases.

Awaiting sentence

While waiting to know the full sentence and their individual votes in the coming days, what has transpired so far is that the duration of the extension established by the Government during the months that the second state of alarm lasted alone does not deserve reproach. constitutional. What is criticized is the “unreasonable or unfounded” nature of the decision establishing such a period.

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Therefore, the judgment will explain why the temporary determination of that six-month extension was made in a way that was entirely inconsistent with the constitutional meaning that is proper to the act of authorization and no coherence some, even, with the reasons that the Government asserted to urge the extension finally granted, as was advanced in a press release after the vote on this matter by the Plenary of the Constitutional Court.

Alarm without concrete measures

In addition, the extension was authorized when the limiting measures rights included in the request were not going to be applied immediately by the Government, since their implementation was subject to what the presidents of the autonomous communities so decided, so that authorization was given, in the opinion of the guarantee body , without knowing what measures were going to be applied to combat the pandemic.

Regarding the designation of the delegated competent authorities, the judgment considers that, among other reasons, this decision contravenes the provisions of the organic law to which art. 116.1 CE the regulation of states of crisis and the corresponding powers and limitations. In addition, the Government permanently agreed to the delegation without any reservation of the effective supervision or the eventual certification to the Government itself, of what the delegated Authorities could act in their respective territorial areas.

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